Acton “Tricks” the ICO

On Friday, the UK Information Commissioner ruled against my request for (1) the attachments to the Wahl-Briffa email that contained Wahl’s surreptitious changes to the AR4 Report from the language sent to reviewers to language much more favorable to Mann and Wahl; (2) Wahl and Ammann (2004, submitted), cited in the AR4 First Draft, the archive to which has been destroyed by IPCC.

The ICO accepted the university’s argument that they were not in possession of documents on the back-up server in police possession, a ruling apparently at odds with the Tribunal’s recent overrule in the Keiller case, which was noted up and, in my opinion, implausibly distinguished.

I’ll discuss this aspect of the ruling in another post. In today’s post, I’m going to discuss an important obiter in the ICO decision, an obiter in which the university unsuccessfully attempted to reconcile unequivocal declarations by both Acton and Muir Russell to the Parliamentary Committee that “all” the emails were available with the contradictory statements in their FOI refusals that the university no longer possessed key emails. Unfortunately, the university’s attempt was based on more untrue and unsupported assertions, this time to the ICO.

In my appeal, I had pointed out the inconsistency between assertions in East Anglia’s FOI refusal and Vice Chancellor Acton’s assurances to the Parliamentary Committee. The ICO asked East Anglia to comment on this point, reporting on the exchange as follows:

21. In relation to this information the complainant has suggested that:

“These were attachments to emails from [third named individual- Wahl] to [named individual – Briffa] that were the subject of Jones’ delete-all-emails request. At the hearings of the Science and Technology Committee, MP Stringer asked Vice Chancellor Acton “Are all the emails now available and can be read? Acton said “Yes”. If so, then the University must hold the documents that they had refused on the basis that they did not hold the documents and appeal their refusal on this basis.”

The Commissioner therefore asked the University to respond to this.

22. The University explained that:

“In his testimony in front of the Select Committee, the Vice-Chancellor was merely stating that no emails had been deleted as a result of, or subsequent to, an email form Prof. P. Jones of 28 May 2008 that suggested such an action. The documents at the heart of this present request, and the emails to which they were attached, all date from 2006. It is highly likely, even good records management practice, that such emails and attachments would have been deleted in the normal course of business between 2006 and 2008, well in advance of any request for either the emails or the attached documents.

The Vice-Chancellor was not aware of this request, or these documents, when he made his comments before the Select Committee, nor were his comments directed at these documents. The question and the answer pertained to an entirely different set of documents within a different time frame.”

“An entirely different set of documents within a different time frame”. The mind boggles at the audacity of the misrepresentations by VC Acton and the University of East Anglia.

The Requested Documents

Let’s start with the documents referred to in my FOI request. They were attachments to emails within two Climategate-1 threads (716. 1153470204.txt and 733. 1155402164.txt), in which Wahl, neither an IPCC contributing author nor reviewer, inserted partisan changes to the IPCC final report.

Jones’ notorious delete-all-emails request (891. 1212063122.txt) has been quoted frequently. In an email with a subject line “IPCC & FOI” , Jones had written:

Mike [Mann],

Can you delete any emails you may have had with Keith re AR4? Keith will do likewise. He’s not in at the moment – minor family crisis.

Can you also email Gene [Wahl] and get him to do the same? I don’t have his new email address. We will be getting Caspar [Ammann] to do likewise.

Jones’ request clearly included the Wahl-Briffa emails contained in Climategate threads 716. 1153470204.txt and 733. 1155402164.txt. Mann immediately confirmed his participation in the plan and contacted Wahl, who promptly deleted his email correspondence with Briffa in accordance with Jones’ request. (Wahl was not directly interviewed until early 2011, when Wahl’s participation was confirmed by the NOAA Inspector General.)

The Wahl-Briffa correspondence contains many marks of furtiveness, due, in my opinion, to the fact that the AR4 document was now in its final stages and Wahl, who was not an IPCC contributing author or even reviewer, was now both editing the language of the final AR4 document and the responses to reviewers on an issue in which he was a disputant. The emails were all headed “confidential”, with the word “confidential” recurring in the emails. Briffa asked Wahl to “PLEASE REMEMBER that this is ‘for your eyes only'” and “Please do not pass these on to anyone at all”. Briffa asked reassurance from Wahl that the language that he had “borrowed (stolen)” from Wahl was “OK (and will not later be obvious) hopefully”.

This latter concern of Briffa’s proved well-founded as his “borrowed (stolen)” language was noticed in a CA post of May 24, 2008 (The Dog That Didn’t Bark), leading me to postulate surreptitious non-open non-transparent contact between Wahl and Ammann and IPCC Lead Author Briffa, a hypothesis that turned out to be correct. David Holland’s supplementary FOI request of May 27, 2008 – the one that triggered Jones’ delete-all-emails request – came a few days later.

But regardless of the reason for the furtiveness between Wahl and Briffa, let there be no doubt on this point: the Wahl-Briffa correspondence and attachments in Climategate-1 threads 716. 1153470204.txt and 733. 1155402164.txt were well within the scope of Jones’ email deletion request. They were not a “different set of documents” from a “different timeframe”.

The Sci Tech Committee First Report, March 2010

Jones’ deletion request attracted attention right from the beginning of Climategate.

On January 28, Ben Webster and Jonathan Leake of the Times reported (see links here) that it was the ICO’s view that East Anglia had violated the FOI act, but they could not be prosecuted since the offence, though just discovered, was now time-barred. Acton immediately issued a statement saying that the ICO’s opinion was of “grave concern” to the university. In that statement, he asserted that the university’s handling of FOI requests was “deliberately” part of the Muir Russell terms of reference:

Sir Muir Russell is currently conducting an Independent Review of the issues surrounding what has become known as ‘Climategate’ and we very deliberately made our handling of FOI requests part of the terms of reference.

On January 29, 2010, the Information Commissioner publicly rebuffed Acton, telling the UEA that it was impossible to contemplate “more cogent” evidence of an offence, but that prosecution was unfortunately time-barred (see CA here):

The prima facie evidence from the published emails indicate an attempt to defeat disclosure by deleting information. It is hard to imagine more cogent prima facie evidence. Given that this was in the public domain and has been discussed in the media and on various websites over a number of weeks, the ICO’s view, as I indicated when we spoke yesterday, is that the University must have understood that the question whether an offence under section 77 had been committed would be looked at. In the event, the matter cannot be taken forward because of the statutory time limit.

In the hearings of the Sci Tech Committee on March 1, 2010, despite Acton’s public statement that controversies over handling of FOI requests were part of Muir Russell’s terms of reference, Muir Russell told the SciTech Committee that his committee was not going to make “investigative judgements” on FOI (this paragraph was cited in response to Stringer’s questions in the fall hearing). Although the ICO had said that they did not plan to investigate the time-barred offence, Muir Russell told the Committee that he did not plan to “get in the way” of the ICO:

Q171 Mr Boswell: You heard the exchanges with the former Information Commissioner earlier and you know that he has tendered evidence suggesting that the Commissioner rather than yourselves should be making rulings on the validity of FOI requests. What is your take on that?

Sir Muir Russell: Obviously, we have talked with the Commissioner’s staff who were looking at the issues arising for CRU. I am very clear that we do not wish to get in their way or to do anything that inhibits their ability to do any statutory work that they need to do. If you look at the letters that were running around at the end of January and which came out in the media over the weekend, they are saying there are still inquiries that need to be pursued. I would want to do nothing to get in the way of those. If, looking at how the University established its own FOI policies and the processes by which it made sure that CRU complied with them or did not—we must not prejudge that—we have things to do that help the Commissioner, then that is what we will do, but I am not going to put the review into the position of making the sort of quasi-judicial, prosecutorial, investigative judgments that Mr Thomas spoke about. That is ICO’s job.

Acton also appeared before the committee on March 1, with his appearance being memorably recorded by Quentin Letts as follows:

Jones was accompanied by his university’s vice-chancellor, Professor Edward Acton, who provided much-needed comic relief. Professor Acton, a younger version of Professor Calculus from the Tintin books, beamed and nodded at everything Professor Jones said. ‘I think that answer was spot-on,’ he cried, after listening to one response from the terror-stricken Jones.

Professor Acton’s left eyebrow started doing a little jiggle of its own. His eyeballs bulged with admiration for the climate-change supremo. His lips were pulled so wide in wonderment they must nearly have split down the seams like banana skins.

Acton also retained Neil Wallis and Outside Organisation to video the great man exiting the Parliamentary Committee.

In their first report (March 31),the SciTech Committee, apparently concerned by the fact that neither the ICO or Muir Russell appeared to have assumed responsibility for the FOI investigation, stated that determination of the facts in the affair was essential regardless of the time-bar. They stated unequivocally that either the Information Commissioner or Muir Russell should investigate the affair and that it should not fall between stools. This was expressed in the Summary as follows:

The Deputy Information Commissioner has given a clear indication that a breach of the Freedom of Information Act 2000 may have occurred but that a prosecution was time barred; however no investigation has been carried out. In our view it is unsatisfactory to leave the matter unresolved. We conclude that the matter needs to be resolved conclusively—either by the Independent Climate Change Email Review or by the Information Commissioner.

Their determination on this point was stated in the running text as follows:

There is prima facie evidence that CRU has breached the Freedom of Information Act 2000. It would, however, be premature, without a thorough investigation affording each party the opportunity to make representations, to conclude that UEA was in breach of the Act. In our view, it is unsatisfactory to leave the matter unresolved simply because of the operation of the six month time limit on the initiation of prosecutions. Much of the reputation of CRU hangs on the issue. We conclude that the matter needs to be resolved conclusively— either by the Independent Climate Change Email Review or by the Information Commissioner. (para 93)

Needless to say, Muir Russell flouted the Sci Tech Committee’s explicit request and the terms of reference supposedly set by the university.

The Muir Russell Report

Amazingly, the Muir Russell panel failed to interview either Jones or Briffa on the deletion of emails (see discussion of the fall hearing below). Despite this neglect, the Muir Russell report stated (incorrectly) that there was “no evidence of any attempt to delete information in respect of a request already made” as follows:

28. Deliberate actions to avoid release. There seems clear incitement to delete emails, although we have seen no evidence of any attempt to delete information in respect of a request already made.

In September 2010, Fred Pearce wrote sarcastically in September 2010 that Muir Russell must have been the “only person studying the affair not to have known about it”:

One of the most serious charges to emerge from “climategate” was that CRU scientists did back-door deals to include unpublished research in the last IPCC report, published in 2007. This subverted the supposedly open review process of the IPCC. And, when someone asked for the emails that would have exposed it, they hastily deleted them – a potential breach of freedom of information (FoI) law.

The Muir Russell inquiry said it found no evidence that the CRU scientists had done this. Observers were incredulous. The chronology seemed straightforward. British sceptic David Holland submitted an FoI request to the university asking for emails in which CRU scientists discussed their work for the IPCC. Two days later, Jones sent an email to colleagues asking them to delete emails relating to the behind-the-scenes work for IPCC. That email, as Montford points out, carried Holland’s FoI number as its subject line.

How did Sir Muir miss this? In a development not covered by Montford, the university has since admitted, in correspondence with blogger Steve McIntyre, that it omitted the email from its list of FoI requests sent to Sir Muir. So Sir Muir seems to have been about the only person studying the affair not to have known about it.

This is all, we may hope, cock-up rather than conspiracy. But the university did itself no favours in its own response to Sir Muir last week, when it expressed its satisfaction that he had found no evidence of such culpable deletions. Advice to UEA: when in a hole, stop digging.

SciTech Committee Second Hearing, Fall 2010

In October 2010, Muir Russell and Acton were recalled to the Science and Technology Committee. When Graham Stringer’s turn for questioning arrived, he immediately asked Muir Russell about his untrue finding in regard to Jones’ email deletion request:

Q84 Graham Stringer: Thank you. Sir Muir, on page 92 of your report you say, and I paraphrase, that there is no attempt to delete e-mails after there had been a request made, whereas in actual fact the e-mail of 27 May from Jones actually asked for deletion of e-mails, didn’t it?

Sir Muir Russell: It requested them. I think we said that there was incitement to delete. You have quoted half the sentence. The first bit says: “There seemed clear incitement to delete but we had seen no evidence of any attempt to delete in respect of a request already made.” That is quite a tricky area because they do still exist, apart from anything else, but the question that I think you’re getting at is whether we sought to chase that particular question about deletion of requested e-mails through our review.

Muir Russell’s assertion that the emails subject to Jones’ delete-all-emails request “still existed” was subsequently relied upon by the Sci Tech Committee. However, according to the university’s recent evidence to the ICO, the university unsuccessfully searched for these emails and now says that it was “highly likely” that the emails (and attachments) were deleted prior to May 2008 (without offering any evidence for such an early deletion date). Nor was Muir Russell’s answer responsive to Stringer’s actual challenge to the Muir Russell incorrect finding satirized by Fred Pearce.

Muir Russell then told a surprised audience that his committee never had any intention of investigating the deletion of emails:

Q85 Graham Stringer: I suppose we are haggling about the word “attempt”, aren’t we?
Sir Muir Russell: Yes.
Graham Stringer: That’s the real issue.
Sir Muir Russell: I don’t want to play with semantics because the real challenge that is in behind here is that the Russell Review—we will call it that—didn’t come to a conclusion on deliberate deletion of e-mails that had been requested. The reason we didn’t do that was something that I think I made clear to Mr Boswell when this came up in question 171 in March. I said I wasn’t going to put the review into the position of making the sort of quasi-judicial prosecutorial, investigative judgments that Mr Thomas—you will remember he spoke at the beginning of that session— had spoken about. That was an ICO’s job. That was the position that we took. So, had we been going to get into this, we would have had to start asking questions under caution. We would have been doing the sort of investigative stuff, because you’re getting to the point where you’re alleging that there might have been an offence, and that really wasn’t the thing that my inquiry was set up to do, especially when there is a parallel entity called ICO that has the investigative skills, the training and the background with its personnel.

So that, in short order, was why we didn’t go down the road of saying, “And did you delete things that had been requested?”, because we felt that that would take us into an area where we would have had to operate under caution, and it wasn’t actually relevant to where we had got to on the issue that all this is about, which is what was the end product of the influence that this process had on what was said in the IPCC report. We can talk about that at some length But what I said to Mr Williams about going after the big issues is really referable to the fact that we moved in that direction rather than chasing the words in the individual e-mails.

Stringer resisted Muir Russell’s attempt to divert discussion to the impact on IPCC and double-checked Muir Russell’s amazing admission that his panel had failed to ask Jones (and Briffa) about the deletion of emails:

Q86 Graham Stringer: I find it a bit surprising, that you didn’t ask directly when a lot of the controversy had been about the request to delete e-mails. You didn’t personally ask Professor Jones—it was the 29th, not the 27th; I apologise for that—directly whether he had deleted those emails?

Sir Muir Russell: That would have been saying, “Did you commit a crime?”, and we would have had to go into a completely different area of the relationship and formal role for the inquiry. Remember, what this chain of logic is all about is a process that is leading up to what did or didn’t get admitted as evidence in an IPCC chapter. That’s the issue that matters.

Q87 Graham Stringer: Well, I think it does matter.

Sir Muir Russell: It is not that it is immaterial. We had lots to say about FOI and Professor Acton can say quite a bit about what the university has done about that.

It’s interesting to watch Muir Russell offering up “what did or didn’t get admitted in an IPCC chapter” as what the “chain of logic” was all about, given that this was not on their terms of reference and was sketchily handled in the report itself. Stringer then asked Muir Russell whether he had already planned not to ask Jones about the deleted emails when he testified before them in March, with Muir Russell (prepared for the question) citing paragraph 171 (see above) of his evidence.

Q89 Graham Stringer: When you came to this Committee in March, were you aware that you weren’t going to ask Professor Jones or anybody else whether they deleted e-mails?
Sir Muir Russell: In the terms in which it related to the thing that might have been alleged to be a criminal offence, I have referred you. It is question 171 of the proceedings, which I have brought with me, because I knew from reading the Mr Holland material that this is one of the chains of the logic that he brings out.

Q90 Graham Stringer: That’s right. He put a Freedom of Information request in on the 27th.
Sir Muir Russell: Yes.

Q91 Graham Stringer: So there is the e-mail from Jones on the 29th requesting deletion. So it’s quite a fundamental part.
Sir Muir Russell: Yes, but it is covered in the 7 July statement by ICO, and it was covered in your exchanges with the Vice Chancellor. It does take you into the area of interviewing under caution and so on, but that is the judgment we made. It’s a fact. We didn’t ask these questions.

Q92 Graham Stringer: No. You have been very clear, honest and straightforward about that. You didn’t ask the questions. So what I am asking you now is, were you aware of that when you came before the Committee in March?
Sir Muir Russell: That’s what I said to Mr. Boswell. Yes.

Q93 Graham Stringer: Yes. I don’t recall you telling us that.
Sir Muir Russell: We can play with words, but that is what 171 was about, in my understanding.

Looking back at this exchange, Stringer would have been better off focusing on why Muir Russell and the ICO had jointly neglected to investigate an issue that the Parliamentary Committee had directly asked them to coordinate on to ensure that it was investigated – a request that was made subsequent to Muir Russell’s testimony, but this is easier to see with the benefit of the written record than it would have been in the committee room.

Acton’s Testimony
Stringer then asked Acton about Muir Russell’s failure to investigate the time-barred FOI offences (an investigation that Acton’s Janurary statement had set out as one of the central mandates of the Muir Russell panel.) Acton’s response was totally unexpected: Acton claimed that he himself had carried out the investigation that Muir Russell had failed to carry out, that he had personally “asked” the questions that Muir Russell had failed to ask (again an assertion that was relied upon in the Sci Tech Committee’s report):

Q94 Graham Stringer: Right. I shall look at that. Professor Acton, are you satisfied that these questions weren’t asked, that people in your university were sending out e-mails suggesting that e-mails should be deleted and that hasn’t been investigated?

Professor Edward Acton: It has been investigated. I have asked them and they have assured me that they have never knowingly deleted e-mails subject to a request.

Stringer was undoubtedly taken by total surprise at this astonishing information and (unsuccessfully) sought further details about the form of Acton’s investigation:

Q95 Graham Stringer: Did you ask them under caution?
Professor Edward Acton: The relationship that I have with them is rather different. It is absolutely part of my duty to address that kind of spirit and make sure I drive it out of the university and establish the facts. Can those e-mails be produced? Yes, they can. Did those who might have deleted them say they deleted them? No. They say they did not. I wanted to be absolutely sure of those two, and I have established that to my satisfaction.

Typically, Acton did not directly answer the question. I have no doubt that his relationship with Jones and Briffa is “rather different”, but this does not shed much light on the nature of his investigation or whether he had asked Jones and Briffa “under caution”. (It seems entirely possible to me that Acton never directly asked Briffa about his deletion of emails.

This statement was even more categorical than his opening statement – that the emails can be “produced” and that Jones and Briffa did not delete the emails. Acton wanted to be “absolutely sure” on these points and says that he “established” these facts to his satisfaction. Acton’s assurances to the committee are impossible to reconcile with Jonathan Colam-French assertions in August 2010 (only two months prior to the hearing) that the university did not possess the Wahl-Briffa emails and attachments, assertions re-iterated in the university’s recent evidence to the ICO.

Stringer continued to try to pin down the evasive Acton on particulars of his supposed meetings with Jones and Briffa:

Q96 Graham Stringer: And you recorded those meetings with Professor Jones and his team?

Again, Acton did not answer the asked question (leading me to wonder whether there were any relevant meetings). Instead Acton provided an unresponsive (and untruthful as it turns out) reply that “these statements” had been at the UEA website “for some time”:

Professor Edward Acton: If you examine our website you will find that these statements have been there for some time.

Stringer didn’t follow this up. Re-reading the exchange, one can see why Stringer got wrongfooted here. Stringer would undoubtedly have presumed that Acton was telling the truth and that he (Stringer) had not been briefed on the Acton investigation, the details of which were supposedly in plain view at the UEA website. I would have also been blindsided by this testimony as I too was at the time unaware of any particulars of the Acton “investigation” on the UEA website.

In fact,there was no information on the Acton “investigation” at the UEA website on the day of the hearing let alone for “some time”. A few days after the hearing (on or about Nov 4, 2010), the UEA placed their submission to the Sci Tech Committee online – see here. Appendix F to this submission contained “Extracts from statements by Phil Jones and Keith Briffa concerning email deletion”. Briffa’s statement merely said that he had never “knowingly deleted emails or files that were at the time subject to a request under FOIA or EIR” and that he would be a good boy in the future:

For my part I wish to assure you that I have not knowingly deleted emails or files that were at the time subject to a request under FOIA or EIR, and will not do so in the future.

I also assure you that I will not suggest to anyone that they should delete emails or files subject to similar requests under FOIA or EIR. I will use whatever means at my disposal to encourage greater openness and proactive compliance with FOIA and EIR within the CRU and the wider University.

The statement contained no details on Acton’s “investigation” or whether Acton had even interviewed Briffa on the matter. (Jones’ statement is similar.) There is nothing in Briffa’s statement that indicates that Acton (or anyone else) had actually asked Briffa whether and when he had deleted the Wahl-Briffa correspondence. Nor do Briffa’s words in this statement support Acton’s assertions to the Sci Tech Committee that “all” the emails can be “produced” or that Briffa had not deleted the emails in question. Briffa’s claim was narrower: that he had not “knowingly” deleted emails or files that were at the time subject to a request under FOIA or EIR, not that the emails and files were present and accounted for. However, Stringer was not in a position to challenge Acton’s (untrue) claims at the time and did not do so.

The published record of the hearings (January 2011) included a postscript in which Acton conceded one untrue aspect to his evidence. The published record includes the following note to Acton’s evidence above:

3. Note by witness: Please replace “our website” with “your website”. Professor Acton was referring to the submission made to the Committee on 2 September [Ev 20].

The document placed online at the UEA website on Nov 4 does indeed match the document in the published record at page Ev 20. (I don’t know at present whether this had been placed on the website of the Sci Tech Committee when it was submitted or not and will endeavor to find out.) However, nothing turns on this small fact in respect to Acton’s assertions that “all” the emails could be produced and that nothing had been deleted.

Stringer then probed a related issue, first identified by Andrew Montford. Muir Russell meeting minutes of a December 18, 2009 meeting between Muir Russell and the IT staff (released after publication of the Muir Russell report) included the surprising statement from Jonathan Colam-French that Briffa had taken home “emails that were subject to FOI” to “ensure their safekeeping”, yet another issue not investigated by Muir Russell:

JCF – For example Keith Briffa took home emails that were subject to FOI to ensure their safekeeping.

Stringer asked Acton whether he had asked Briffa why he had taken emails home, resulting in Acton’s admission that he hadn’t (along with more of Acton’s unsupported speculation):

Q97 Graham Stringer: Did you ask Professor Briffa why he thought it necessary to take e-mails home?
Professor Edward Acton: I didn’t. I can, if it is appropriate, tell you an element that I think may bear upon it, which was that at the time he was gravely ill and rather frequently not in the university. So to take a copy home does not seem to me very extraordinary, but I haven’t asked him.

Stringer’s next question led to Acton asserting a third time, unequivocally, that the emails are “produced and producible”, that they are “there”, that they are “available” and “can be read” and that his “colleagues” did not “do what is in question” (delete the emails covered in Jones’ request) :

Q99 Graham Stringer: So you don’t think there was any question about security of the e-mails? It was entirely about the health of Professor Briffa?
Professor Edward Acton: I’ve told you that it seems to me, in speculating on why he might have done that, that does seem an extraordinarily plausible explanation. My concern is to be sure that they are produced and producible, that they are there and that both colleagues firmly assert that they did not do what is in question.

Q100 Graham Stringer: Are all those e-mails now available and can they be read?
Professor Edward Acton: Yes.

The second report of the Sci Tech Committee oozes with frustration at Muir Russell’s failure to investigate the deletion of emails and that they were left with nothing more than Acton’s “verbal reassurance”, stating in their summary (and para 89):

We are concerned that it did not fully investigate the serious allegation relating to the deletion of e-mails. We find it unsatisfactory that we are left with a verbal reassurance from the Vice-Chancellor that the e-mails still exist.

In their running text, they directly cited statements by Muir Russell and Acton that were inconsistent with the university’s FOI refusals (and with their recent evidence to the ICO). They noted their lack of success in getting a coherent explanation from Muir Russell on the (untrue) finding of his panel on email deletion:

85. The ICCER also stated “there seems clear incitement to delete emails, although we have seen no evidence of any attempt to delete information in respect of a request already made.” 113 We questioned Sir Muir Russell about what this statement meant. He explained that the e-mails “do still exist”; (114 -Q84) then went on to explain why the ICCER did not come to a conclusion on deliberate deletion of e-mails that had been requested…

They also reported Acton’s claim that he had questioned CRU scientists about the deletion of emails and Acton’s unequivocal assertions that the emails can be produced and that the scientists had not deleted them:

86. Professor Acton had no such qualms questioning the scientists at CRU about whether or not they had deleted e-mails subject to FoI requests. He told us “Can those e-mails be produced? Yes, they can. Did those who might have deleted them say they deleted them? No. They say they did not”.116

A Tangled Web
At this point, the web is so tangled that it’s very hard for Acton and the University of East Anglia to keep their various stories straight.

As noted above, in August 2010, the university had said that they were not in possession of the attachments to the Wahl-Briffa emails. However, two months later, they unequivocally told the Parliamentary Committee that they could produce “all” the emails and that Jones and Briffa had deleted nothing. But in their submissions to the ICO in 2011, they said that they were not able to produce the Wahl-Briffa documents, arguing that:

It is highly likely, even good records management practice, that such emails and attachments would have been deleted in the normal course of business between 2006 and 2008, well in advance of any request for either the emails or the attached documents.

I do not believe for a minute that Briffa deleted the emails and attachments either in the normal course of business between 2006 and 2008, or that such deletions were done in accordance with “good records management practice” or that the deletions were “well in advance” of any FOI request. I am also skeptical about whether Acton’s “investigation” included relevant questioning of Briffa (and Jones). It’s too bad that Acton evaded Stringer’s questions on details: when did Acton meet with Briffa (and Jones) to “ask” the salient questions? Are there minutes of the alleged meeting? Were there any witnesses? If so, who?

Nor do I give any credence to the evidence by either Acton or Muir Russell to the Sci Tech Committee on the deletion of emails. Neither Acton or Muir Russell was in a position to responsibly affirm to the Committee that “all” the emails were “available” or that Jones and Briffa hadn’t deleted anything. Their evidence to the Committee on this point was not only untrue, but was apparently made without any apparent basis.

Nor is there any validity to East Anglia’s evidence to the ICO that Stringer’s question and Acton’s answer pertained to an “an entirely different set of documents within a different time frame.” Both Stringer’s question and my FOI request pertained to the 2006 Wahl-Briffa correspondence concerning AR4. But East Anglia says that Stringer’s question and Acton’s answer pertained to a “different set of documents” and “different time frame”? This invites the obvious question: what was the “different set of documents”? And what was the “different time frame”?

As noted above, the discussion of Acton’s evidence to the Sci Tech Committee was obiter to the ICO ruling. I.e. the ICO’s ruling was based on their assessment of the university’s search for the missing documents. It is not their job to determine the validity of Acton’s evidence to the Sci Tech Committee or, in the event that Acton’s evidence to the Sci Tech was untrue, whether Acton had a reasonable basis for making the untrue claims.

Never attribute to malice that which is adequately explained by stupidity. — Hanlon’s Razor

… but don’t rule out malice. — Albert Einstein

And what really irks me is that Mann et al. are clearly aware that they are breaking rules with regards to the IPCC process, and they are clearly aware that their emails are subject to FOI and they are wilfully breaking rules with their behaviour – no hiding behind Hanlon for them.

I was not sure with regards to the ICO. Clearly they should know the rules with regards to FOI and email deletion. The question is, did Mann et al. pull the wool over the eyes of the ICO? Or to rephrase: is the ICO that stupid not to realize that this is clearly not “an entirely different set of documents”? My (very limited) view of the people handling the FOI process is that they see themselves as the helpers of the institutions (and ultimately their “colleagues”) that are target of FOI requests – and not as neutral arbiters. I would say they are accomplices and not dupes in this.
Steve: Mann has nothing to do with this. It’s tiresome that people over-blame Mann.

Is it possible the emails still exist on a memory stick in the possession of one the the UEA staff, hence Acton can say they have not been deleted but also not available. Remember Mann did the same trick to Penn, he kept his emails on a memory stick but not on the server, so he deleted them from the server but kept them hidden just in case he was ever forced into a corner.

As ever its worth noting that is the situation was a dramatic has claimed, if things were as urgent as claimed and if the science was as settled as claimed. Far from the smoke and mirrors tricks being pulled , they been ramming the information under peoples noses. Arrogance or ignorance you have to ask which one of these two causes them to act this way .

Steve, this rejection of your request by the ICO, is an absurdity and must be appealed.
My case clearly demonstrated that emails “deleted” from CRU’s staff computers, prior to “Climategate1”, were, in all probability, retained on the backup server, both physically and for the purposes of the EIR Act.

It would appear that both UEA and the ICO are in flagrant disregard of this Decision.

They are also clearly in possession of the emails, either as descibed above or as described below.

Here I quote from the Science and Technology Committee meeting on 27 October 2010 (Oral Evidence EV13 and 14)

However, Mr Colam-French, himself, in the 18 December meeting is recorded as giving a very important item of evidence to the Commissioner which should have immediately raised serious concerns as to what was going on at CRU with respect to information requests. Mr Colam-French is reported to have said among other things,
“Working data, emails, more transitory working information – may be stored in other locations. For example Keith Briffa took home emails that were subject to FOI to ensure their safekeeping.”

So here we have it “Delete” has a special meaning for CRU. It means transfer to other storage media (pen drives), deleting them from their personal PC, then taking the pen drives home.

This means they can say we “didn’t delete the emails”, yet still conceal them from FOI/EIR requests.

There is a whole string of emails showing this practice:

16th January 2004 Mike this is for YOURS EYES ONLY. Delete after reading – please ! PLEASE DELETE – just for you, not even Ray and Malcolm

2nd. February, 2005: ―. If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone.

9th May 2008 You can delete this attachment if you want. Keep this quiet also, but
this is the person who is putting in FOI requests for all emails Keith and Tim have written and received re Ch 6 of AR4. This message will self destruct in 10 seconds!

29th. May 2008 Mike Can you delete any emails you may have had with Keith [Briffa] re AR4? Keith will do likewise… Can you also email Gene [Wahl] and get him to do the same? I don’t have his new email address. We will be getting Caspar [Ammann] to do likewise.

4th June 2008 John Mitchell did respond to a request. John had conveniently lost many emails, but he did reply with a few. Keith and Tim have moved all their emails from all the named people off their PCs and they are all on a memory stick.

25th Sep 25 2008 I’ve called Jo to say I’m happy with their response I’ll also delete this email after I’ve sent it. We’ve had a request for all our internal UEA emails that have any bearing on the subject, so apologies for brevity.

3rd December 2008 When the FOI requests began here, the FOI person said we had to abide by the requests. I am supposed to go through my emails and he can get anything I’ve written about him. About 2 months ago I deleted loads of emails, so have very little — if anything at all.

3rd December 2008 With the earlier FOI requests, I wasted a part of a day deleting numerous emails and exchanges with almost all the skeptics. So I have virtually nothing. I even deleted the email that I inadvertently sent.

12th May 2009 One way to cover yourself and all those working in AR5 would be to delete all emails at the end of the process. Hard to do, as not everybody will remember to do it.

12th Sep 2009 I’ve saved emails at CRU and then deleted them from the server. Now I’m at home I just have some hard copies

Here we have incontrovertible evidence that not only did Professor Jones advocate deleting emails, post 2005, that he knew would be subject to FOIA/RIR requests, but he deleted emails from his own PC, after I note saving them for his own future use, but also attempted to delete emails from the server. Fortunately he could not remove them from the backup server.

Finally, as we all know the Muir Russell Enquiry requested emails from the backup server.

As I outlined in my initial response below I think that our Review will need
to simplify our requirements in order to achieve a more manageable timeframe
and cost. Could you please put some supplementary questions to Qinetiq as
detailed below?

1. Could Qinetiq please quote costs and timescale just to extract the
e-mails from the backups of four specific machines – those of Prof. Phillip
Jones, Prof. Keith Briffa, Dr. Tim Osborn and Dr. Mike Hulme?

2. Does CRUBACK3 contain any backup of a central e-mail server (such as an
Exchange Server)? If it does, could Qinetiq please quote costs and
timescale to extract all the e-mails just from that backup?

I have an invoice for £10469.25, addressed to UEA for this service.

I also have an email which states explicitly that the UEA VC (Acton) “owns” this information in terms of the Data Protection Act.

So, there we have it. UEA does “possess” the emails, either
1) On the backup server (currently in possession of the Police)
2) On pen drives taken by CRU staff offsite
3) Bought and paid for.

For technical background I will repeat part of the information I posted on this thread at Bishop Hill. This relates to how the previously unspecified open source software used for backup by CRU handles attachments.

Hi Tim,
It’s gone back to 16 mins today.
I upgraded BackupPC last week. My guess is that they’ve changed the algorithm for
incrementals so it effectively did a full backup and then some. Once it did a real “full
backup” the new algorithm works properly so incrementals go back to a more manageable
size.
I’ll be doing a further upgrade in a few days, so it may do it again. Fix would be to
force a full backup.
Mike
Tim Osborn wrote:

Hi Mike,
my cruto4 (Windows) machine incremental backups seem to have gone from 15-45 minutes
previously up to 281 minutes on Wednesday and been running since 10am today and still
going! Any idea what’s happening?

BackupPC is a high-performance, enterprise-grade system for backing up Unix, Linux, WinXX, and MacOSX PCs, desktops and laptops to a server’s disk. BackupPC is highly configurable and easy to install and maintain.

For example, the Eudora email tool stores each mail folder in a separate file, and attachments are extracted as separate files. So in the sadly common case of a large attachment emailed to many recipients, Eudora will extract the attachment into a new file. When these machines are backed up, only one copy of the file will be stored on the server, even though the file appears in many different full or incremental backups. In this sense Eudora is a “friendly” application from the point of view of backup storage requirements.

Since the famous “I wont give you anything because you will use it against me” deal in the early 2000’s, exactly how many times has anyone on “the team” simply just honestly and openly complied with any request or FOI for information?

Thanks once again Steve for taking a narrow area of great significance raised by the voluminous Climategate emails and giving us all the important and contradictory public statements on it since November 2009.

I was I believe the only Climate Audit contributor at the Select Committee hearing in the Thatcher Room on 27th October 2010. There was no way I had enough background to detect the detailed deceptions in real time but I well remember overhearing Bob Ward outside the room afterwards, saying to Trevor Davies and others that he thought it had gone pretty well. I wasn’t so sure about that (it was unconvincing to anyone even with much less background than me) but I had already felt that Graham Stringer hadn’t quite asked the key questions. I now know much more of what Ward meant. And, in Stringer’s defence, as Steve says, nobody could have known all the right questions, particularly given false claims about the wrong website by ‘Professor Calculus’.

Three higher-level reflections. It always seemed clear to me from the off that those leading the Empire Strikes Back phase of UEA PR, misdirection and deceit didn’t want the parliamentary committee to go near Climategate. Although taken as a whole the three UK enquiries were abysmal, as Steve again shows, it was the only the enquiry with democratic accountability, though with precious few resources, that got near the truth – or at least pointed questioning of key witnesses about blatant untruths. It’s great to see the importance now of the Stringer contributions, in context, against the odds.

Second, one takes it for granted by now that Bob Ward would be clapping the UEA vice chancellors on the back straight after their performance – Ward assuming I guess that there was not a dangerous denier like myself within earshot – but isn’t this really quite strange? We can call it The (Expanded) Team or whatever we like but what business is it of Bob Ward, of the Grantham Institute in London, and how come he’s so close to the whole show that his opinion is clearly welcome at such a time? Whatever such acolytes think they are doing, encouraging CRU to “show the science they are doing”, as Tony Mach rightly expects, isn’t it.

Finally, the trickiness of the deceptions involved in UEA’s defence in the wake of Climategate cost considerable money to work out and maintain. A combination of PR guys and lawyers virtually none of whom would have been needed if they had simply played it straight, admitted what had been wrong, thanked Steve McIntyre for his help and got on with a real restoration of their reputation, not this patchwork of tall stories which will in the end do the opposite. Not least because of posts like this. On our side we have someone who isn’t paid a cent. But he knows the truth will oue.

Richard! You’ve been holding out on us! You were there? And so was Bob Ward? And you didn’t tell us?! Hmmm … what other “evidence” have you been hiding, eh? 😉

Kidding aside … Steve had noted:

Nor is there any validity to East Anglia’s evidence to the ICO that Stringer’s question and Acton’s answer pertained to an “an entirely different set of documents within a different time frame.” Both Stringer’s question and my FOI request pertained to the 2006 Wahl-Briffa correspondence concerning AR4. But East Anglia says that Stringer’s question and Acton’s answer pertained to a “different set of documents” and “different time frame”? This invites the obvious question: what was the “different set of documents”? And what was the “different time frame”?

There are a few other “obvious” questions that occur to me. Considering all that Steve and Don Keiller have brought to light:

2. The “different documents / different time frame” excuse rings a familiar bell. I believe it was Jones who sloughed off the questions regarding “HarryReadMe.txt” by declaring that this was work for a “different” project. Why should we believe him?

40. In summary, we have not found any direct evidence to support the allegation that members of CRU misused their position on IPPC to seek to prevent the publication of opposing ideas.

41. In addition to taking evidence from them and checking the relevant minutes of the IPCC process, we have consulted the relevant IPCC Review Editors. Both Jones and Briffa were part of large groups of scientists taking joint responsibility for the relevant IPCC Working Group texts and were not in a position to determine individually the final wording and content. We find that neither Jones nor Briffa behaved improperly by preventing or seeking to prevent proper consideration of views which conflicted with their own through their roles in the IPCC. [emphasis added -hro]

When I first read the bolded part above, following on the heels of the “rationalizations” (joint responsibility, not in a position to determine final wording), it occurred to me that there were two ways one could parse this very curiously worded sentence:

a) One could simply take it at face value, while noting that ‘oh, well, he would say that, wouldn’t he?’ or

b) One could note that review comments are mentioned as part of the evidence in support of the allegations [Item 34, p. 79]. However the Report’s findings and conclusions are deafeningly silent on the questions inherent in [evidence item 0123]:

Briffa sent IPCC chapter materials, including Reviewer Comments to Wahl of Alfred College, in apparent contravention of IPCC rules, seeking advice on how to respond to review comments about divergence. Wahl supplied Briffa with unpublished material that had not gone through the IPCC review process (1155402164).

So it would appear that somewhere between pages 79 and 84, someone dropped the ball – perhaps they saw fit to do so because they found “The evidence and narrative provided by Briffa is persuasive[…]” [p. 83].

Consequently, another way of parsing (translating?!) the bolded sentence in 41. above might be:

Yes, Jones and Briffa did prevent or seek to prevent consideration of views which conflicted with their own, but there was nothing improper in their behaviour (because it was a “group decision” etc).

When this “translation” crossed my (admittedly suspicious) mind some months ago, I discounted it. But in light of all the shenanigans we’ve now seen, I’m not so sure I was right to do so.

There are reasons not to believe their evidence, but Harry Readme is not one of them. It’s unfortunate that the execrable Muir Russell didn’t report on Harry Readme and provide a proper explanation. However, my own understanding is that it did actually pertain to a “different” data set (i.e. CRU TS, not CRUTem). CRU TS hasn’t been used much to my understanding but was used in a study of agricultural yields that got publicity a year or two ago without the connection to Harry Readme being fully understood by the journal editors of Science. I would urge readers not to conflate the two situations.

Your parsing of the Muir Russell sentence on group responsibility is interesting. It is indeed a strangely written sentence. I’ve got some work in progress on contact between Jones and Parker that I’ve been meaning to write up and I’ll try to connect it to this sentence.

CRU TS hasn’t been used much to my understanding but was used in a study of agricultural yields that got publicity a year or two ago without the connection to Harry Readme being fully understood by the journal editors of Science. I would urge readers not to conflate the two situations.

Thanks, Steve. Lesson learned! I shall conflate no more! Nonetheless, to one who might be somewhat challenged when it comes to distinguishing one CRUDataSet from another – or (in the case of Harry Readme) one CRUCodeFile from another – perhaps one might be forgiven for suggesting that Harry Readme does little to inspire a high level of confidence in other CRUCode “products”.

But I’m glad you found the major part of my comment interesting. You(and/or others) might be interested in other somewhat related “anomalies” I had found when reviewing Muir Russell:

Hilary, when all the deep throats have exhausted themselves I’ll be there, cleaning out the bins or something at that level. In this case I had an strange interaction with Trevor Davies afterwards about his ridiculous claim to Steve in person in July, in front of others in the wine bar after the Guardian debate, of a significant error he’d found on Climate Audit. He hadn’t got back to Steve with the URL and when I challenged him on this he suggested that someone had deleted the page in question. I assured him that didn’t happen (unlike UEA emails!) Then the PR guys moved in to question who I was and why I was bothering the vice chancellor. Unimpressive. But as I say, I couldn’t follow the casual deceptions during the hearing in real time, though I sat in the eyeline of Stringer and nodded in support of his lines of questioning as much as I could. Steve can’t be everywhere.

Steve: I remember that exchange in the wine bar. Trevor Davies and I were talking in front of a young reporter from new Scientist. Davies demanded that I retract something. I asked him to tell me what the supposed mistake was. He was also demanding an unwarranted retraction from Roger Harrabin at the time. Davies produced nothing. I think that he was smarting at the time because everyone at the debate had laughed at him because he didn’t know that Muir Russell hadn’t attended the interview with Jones and Briffa and had to ask me who was at the meetings.

For some reason, call it a hunch or something, I think history will be very kind to some and cruel to others. Those folks ‘cleaning out the bins’ are often the people that really know what is really going on.

I recall listening to a guy that would conduct ‘due diligence’ investigations with money managers to determine how well a given company manages other peoples money. This guy took his fiduciary role very seriously. He told me a few anecdotes based on stuff in the trash bins and here-say from the rank and file. Stories that ultimately played a major role on where hundreds of millions of dollars were invested…I am just saying there are dots still to connect and some will be outside the box. Mark Felt took 31 years.

An appeal to the Information Tribunal against the Information Commissioner might now be timely. If Berend -v- Information Commissioner is taken as an example (http://www.informationtribunal.gov.uk/DBFiles/Decision/i141/Berend.pdf), the Tribunal has the power to order East Anglia University to appear as an additional Respondent. In the Berend case the Tribunal ordered the London Borough of Richmond upon Thames to be joined despite the fact that Mr. Berend had not himself requested this.

If UEA are added to the case then you might get at the truth since any witnesses that the university put up would have to testify on oath and be subject to cross-examination.

I know this must be exceedingly frustrating to you, Mr. McIntyre, but UEA have backed themselves into a corner with no exit with their contradictory statements. Now is the time for you and Keiller and Holland to press forward and finally expose their duplicity and dishonesty in a binding legal judgement.

“In his testimony in front of the Select Committee, the Vice-Chancellor was merely stating that no emails had been deleted as a result of, or subsequent to, an email form Prof. P. Jones of 28 May 2008 that suggested such an action. The documents at the heart of this present request, and the emails to which they were attached, all date from 2006. It is highly likely, even good records management practice, that such emails and attachments would have been deleted in the normal course of business between 2006 and 2008, well in advance of any request for either the emails or the attached documents.

The Vice-Chancellor was not aware of this request, or these documents, when he made his comments before the Select Committee, nor were his comments directed at these documents. The question and the answer pertained to an entirely different set of documents within a different time frame.”

So, apparently, these “documents” (emails) “pertained to an entirely different set of documents within a different time frame”.

Really?

A quick search of the “Climategate” email releases show that stored emails date back to at least 1996 and up until late 2009.

How by any stretch of the imagination are emails sent in 2004 in a “different time frame” to other emails, stored on the backup server, which we now know “holds” emails for the purpose of the EIR/FOI Acts?

Here is the relevant statement from the Information Tribunal in my recent case.

“We concluded that the particular email described at 16(1)
above was probably stored on the CRU’s back-up server and probably
contained information of the nature sought by Dr Keiller. We also
concluded that the email being stored in such circumstances was ‘held’ by
the UEA for the purposes of the relevant legislation.”

If my email I asked for is “held”, then so are those asked for by Steve. There is no “wriggle room” here.

“They stated unequivocally that either the Information Commissioner or Muir Russell should investigate the affair and that it should not fall between stools.”

Oh there are definitely some stools floating around, but not the kind you want to sit on. Sorry for the crudeness, but this stuff is simply astounding. Even more astounding is that it’s being ignored by most of the world.

Steve. It would seem to me that it would be very useful to pass on this post (and any other supporting documentation) to Mr. Stringer, MP. Unlike most of us, he will have some clout in having these matters pursued more vigorously.

It is absolutely vital that Steve appeals the ICO’s illogical and legally nonsensical decision, otherwise the precedent that I set “that emails were held for the purposes of the Act” will be ignored and evaded.

In this connection it is worth reading this account of Keiller v IC and University of East Anglia (EA/2011/0152) on this legal blog; http://www.panopticonblog.com/

“(It) is an important decision, not only because of the underlying subject matter, but because it deals with the thorny question of whether or not deleted emails which still exist on back-up servers are “held” for FOIA purposes.

The case concerned a request for the covering email from one of the Unit’s researchers to a colleague in the US, attaching datasets. The requester contended that the covering email contained instructions as to the use of that data, and he wished to see those instructions. UEA responded that, as the covering email had been deleted, it no longer “held” the requested information. The Commissioner agreed – but the Tribunal did not.

It had “no doubt” that the deleted email had been backed up onto the server which had been seized by the police as part of the investigation into the hacking affair. It was “rather disconcerted” by UEA’s evidence on this issue: its witness was unable to answer several pertinent questions about UEA’s email servers, back-up systems and deletion/retention policy. It also found that this email probably would have contained instructions or stipulations on the use of the data.”

Don, this post primarily addressed the “obiter” question of Acton’s untruthful evidence to the Parliamentary Committee. I plan to address the ICO’s attempt to distinguish my request from the Tribunal’s ruling in Keiller.

I appreciate that Steve. My posts have been directed at the ICO’s and UEA’s apparently successful attempt to “bury” the ruling that I had given against them.

It is not a “narrow” judgement in that, whilst it was based on a request for a particular email, they stated:

“On this issue UEA argued in particular that the fact that the email had been intentionally deleted by Prof Jones put it in a different position to material which the University intended to keep and was backed up in case of disaster. Whilst we can see some logic to this position, we noted that the purpose of back-up is precisely to ensure that a document is not lost; the lack of any coherent policy on retention and deletion of documents,and that had there been timeframes in such a policy, we would have expected these to be reflected in the back-up programs operated on the server. In these circumstances, it seemed more logical to us to take the
view that if the email existed, it was still ‘held’ by UEA.”

On the point that UEA argued that the backup server was held by the Police the Judge stated:

“Having reached our conclusion we then sought submissions from the
parties as to the appropriate remedial steps to be taken by UEA bearing in mind that the back-up server in question is now in the custody of Cambridgeshire Police. The remedial steps that we consider to be appropriate reflect those submissions and take into account the
practicalities of the current situation. The remedial steps are set out in the substituted Decision Notice attached.”

Which stated:
Within 49 days of the date of this judgement to make enquiries of the
police with a view to establishing the following:
a. Whether the police are prepared to provide UEA with a copy or
mirror of the data stored on the CRU’s back-up server so that UEA
may establish the existence of and recover the email sent by Prof
Jones to Georgia Tech on or about 15 January 2009
b. Whether the police are prepared to interrogate the back-up server
themselves with a view to establishing the existence of and
recovering the email sent by Prof Jones to Georgia Tech on or
about 15 January 2009
c. Whether the police will allow an independent contractor instructed
by UEA to attend their premises and interrogate the CRU’s back-up
server (or a copy thereof) with a view to establishing the existence
of and recovering the email sent by Prof Jones to Georgia Tech on
or about 15 January 2009.

So UEA can ask the Police.
Moreover, since they have already done so, successfully, for the Muir Russell “Inquiry”, the ICO should have seen no reason not to request them to do the same in this instance.

Typical bureaucratic obscurantism. They do it because they know it works. When you know a committee can only question you for a matter of hours, and then it will be over, it’s easy to misdirect and double-talk. You’ll never get these people pinned down until you get them in court and under oath – and that’s not happening.

I still contend that the ‘time-barring’ viewpoint is wrong. As I read the FOIA at the time you discussed all this and the ICO looked at it, the wording to me was NOT about a “statute of limitations” as it is called in the US, but about how long they had to comply before being called to answer for the violation.

There is CG evidence against. For example, a few days after the Holland FOI:
4th June 2008 2526. 2008-06-04 17:07:25

Keith and Tim have moved all their emails from all the named people off their PCs and they are all on a memory stick…As you and Tom know Keith and I are nowhere near the world’s best for structured archiving – working as we do on sedimentary sequencing!

or

2368. 2008-12-03 13:31:06
______________________________________________________
date: Wed Dec 3 13:31:06 2008
from: Phil Jones
subject: Re: FW: FOI_08-50 ; EIR_08-01
to: “Palmer Dave Mr \(LIB\)”
…
With the earlier FOI requests re David Holland, I wasted a part of a day deleting numerous emails and exchanges with almost all the skeptics. So I have virtually nothing. I even deleted the email that I inadvertently sent.

3791. 2008-12-08 19:49:18
______________________________________________________
date: Mon, 8 Dec 2008 19:49:18 -0000 (GMT)
from: “Tim Osborn”
subject: RE: FW: FOI_08-50 ; EIR_08-01
to: “Jones Philip Prof”
Hi Phil!
re. your email to Dave Palmer [which he copied in his response to you and
cc’d to me, Keith & Michael McGarvie, and which has hence already been
multiply copied within the UEA system, and therefore will probably exist
for a number of months and possibly years, and could be released under FOI
if a request is made for it during that time!]… I assume that you didn’t
delete any emails that David Holland has requested (because that would be
illegal) but that instead his request merely prompted you to do a spring
clean of various other emails that hadn’t been requested, as part of your
regular routine of deleting old emails. If that is what you meant, then
it might be a good idea to clarify your previous email to Dave Palmer, to
avoid it being misunderstood. 🙂

The way things seem to be going, I think it best if we discuss all FOI,
EIR, Data Protection requests in person wherever possible, rather than via
email. It’s such a shame that the skeptics’ vexatious use of this
legislation may prevent us from using such an efficient modern technology
as email, but it seems that if we want to have confidential discussions
then we may need to avoid it.

I shall delete this email and those related to it as part of my regular
routine of deleting old emails!
Cheers
Tim

a) Retrieve their official policy for retention periods as of 2008 (or none if such was the case).
b) Demonstrate whether these people applied the policy consistently, at the time, to their emails.
c) Demonstrate whether the organization overall applied the policy consistently across the board.

It is obvious from these emails that:
a) The authors of these emails either did not understand the policy or were not trained or ignored it or there was none.
b) It is obvious from these emails (and easily borne out by recovery of backups) that they were not applying the policy consistently.

Colam-French may well have been disingenuous here, in that having no records management policy (irrespective of the truth of that) allows persistent “No such record exists, or alternately cannot be found” answers to almost any request

I am waiting for two decisions from the ICO. The first is for everything I asked for from the UEA in May 2008 and the second is for all the Russell Review records which I believe are held somewhere on behalf of the UEA. Its going to be a busy time in the Tribunal and maybe in the Appeal Court. Perhaps now is the time to put the begging bowl out for some real help.

18th December Meeting with IT Personnel 11.15-12.15pm {Briffa took home emails}
1. Please let me have a copy of the email as received by Briffa.
Attached as Appendix D to this letter. {Overpeck’s email}

2. Please advise me how many other emails and documents were kept safe from deletion by Briffa
There are 4337 separate items that were taken home by Keith Briffa

3. Please provide me with copies of any that meet the terms of FOI_08-23 or –31.
Our response in relation to FOI_08-23 is attached as Appendix E to this letter and our response in relation to FOI_08-31 is attached as Appendix F to this letter.

We are proceeding on the basis that, in regards FOI_08-23, you are requesting information covered by your original request of 5 May 2008, and not the other requests contained in subsequent correspondence.{NOTE THIS!} I should note that the information considered at the time we provided the responses to both FOI_08-23 and FOI-08-31 included the information that Prof. Briffa took home with him. Therefore our answer to this question would be the same as our original response.The only caveat to this is that the ICO has ruled, in its’ Decision Notice FER0238017 of 7 July 2010, that FOI_08-23 should have been considered under EIR. Therefore, Appendix E is an explanation of our position under that legislation.

4. Please provide me a copy of any email or other information received by Briffa that could have given rise to his concern that information requested under the FOIA might have been deleted if he did not take it home.
[Information excepted pursuant to Reg. 12(4)(a) Environmental Information Regulations]

The “time limit” may have expired with respect to the supposed “deletion” of the material, but this post reveals quite clearly that East Anglia officials and Acton have engaged in a “cover-up -and quite possibly also Muir Russell. Ironically, these idiots have managed to hang themselves on the horns of a dilemma. Either (1)they have deleted the material, in which case they either lied to Acton, or Acton lied when he said he had asked them, and have tried to cover up the deletion, or (2)they have not deleted the material and have now conspired to cover up the fact that it is available (or deleted it later). So, in other words, whether the material has been deleted or is available, by their own actions, they have basically confessed to a conspiracy to cover-up whatever in the hell it was that they actually did. I strongly suspect that Muir Russell’s testimony before the committee was deliberately false. If so, that puts him right in the heart of a conspiracy between East Anglia, Acton and himself to cover-up what Russell himself has admitted was a crime.

I don’t know about the UK’s position on cover-ups, but in the US it can be extremely serious. Just ask Richard Nixon’s ghost

From your forensic evidence I have to conclude that the UK FOIA in relation to environmental data is not being enforced. There have been withholding of data, deletion of data, commitees and investigations looking in to the withholding of the data, and
we are no better off. Nobody has been sacked, there is a silly time limit that goes into
effect not when the infraction has been unearthed, but at the time of the infraction,
even though only the wrongdoers knew the actual date and time. Former PM Blair now says
it was all a mistake. Dave/Ed, if you can’t or won’t enforce it, get it off the books.
Stop the pretense, end the magic act.

My comment re “begging bowl” was occasioned only partly by Steve’s Decision Notice but more so by a report from another now adjourned ‘oral’ Tribunal hearing on FER0359218

The Appellant in this case, Jeremy, had attended Don Keiller’s hearing in December, as a member of the public, to educate himself on the process. During the lunch break we became acquainted. His case has nothing to do with climate change but was brought under the EIRs and also concerns important documents that are claimed to be “no longer held”.

When Jeremy cited the Decision in Don Keiller’s case in his own as grounds for insisting upon proper searches for “not held” information, the public authority’s solicitor told the Tribunal that Don Keiller’s Tribunal decision was “winging its way” to an appeal. The UEA have 28 days from 18 January to ask for one. If they do appeal it is important for Steve’s case as well as one of mine as well as Don’s that it is vigorously opposed.

It occurs to me that a bottomless pit of public money is available to resist unwelcome efforts to obtain disclosures from public authorities – not only on climate issues, but especially for them. Pressing for ‘oral’ hearings (which is the respondent’s right) places a burden upon appellants in person and must be an irresistible course for a determined and well resourced respondent.

It is one thing for Don or I to get the train to London at our own expense for oral hearings in person, but a different matter for people to fly the Atlantic to appeal in person or have to pay for representation. I was merely expressing the view that for want of a few bob from each of us we should not let UEA or anyone else intimidate us in regard to Freedom of Information requests and appeals. I am sure Steve will make his own views known at the appropriate time.

David, if and when UEA/ICO submit an appeal, I will insist on an oral hearing. I will also insist that Professor Phillip Jones attends so that he can explain his deletion of emails as part of his “routine management”.

Section 77 of the FOIA states (amongst other things) that
“If information is deleted as part of an ongoing records management retention schedule, then
it can and should proceed. Deleting information in response to a request is an offence”

RE:”I will also insist that Professor Phillip Jones attends so that he can explain his deletion of emails as part of his “routine management”.”

Back in December 2008 the good Professor was offering Ben Santer some advice on dealing w/FOI/EIR requests:

“When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sessions – one at a screen, to convince them otherwise showing them what CA was all about. Once they became aware of the types of people we were dealing with, everyone at UEA (in the registry and in the Environmental Sciences school – the head of school and a few others) became very supportive. . . . The VC is also aware of what is going on – . . .”

And further on Phil adds:

” . . . About 2 months ago I deleted loads of emails, so have very little – if anything at all.”

It occurs to me that a bottomless pit of public money is available to resist unwelcome efforts to obtain disclosures from public uthorities

That is very common in Aus. The Australian Taxation Office actually sends out to individuals, news of some heavily unpleasant decision it has made on said individual’s taxation matters together with a “helpful” listing of the costs in appealing all the way up to the High Court … this rather discourages most people from appealing the decision, even if they believe they have a good case

I think we all recognise that there was no shortage of funding on offer (from individuals) to Steve when he had the opportunity to attend the Guardian debate recently and so we should all be optimistic that a similar level of funding would also materialise to support e.g. any personal attendance at important hearings of this nature.

The task then simply becomes one of making sure that prospective donors are kept abreast of developments and need.

Just wanted to get across the sense I have of how lucky us loosers are to have S.M.(and others)out there shakin the tree. Two things stand out. His absolutely scrupulous sense of getting to the bottom of things and more importantly his ability to communicate these tangled webs in a fashion that even I can understand. Thanks Steve!

Re: Adrian Kerton (Feb 7 04:26),
Adrian has sent a copy of his FOI request to me and it is online here. He asked for a documents on how the Norfolk police obtained information on FOI requesters (many of whom were subsequently contacted by UK anti-terrorism police with a strange set of questions, including questions about their views on climate change.)

The UEA says that they have no documents showing the provision of such information to the police. While I question the relevance of anti-terrorism police in this incident, I don’t have any issue with the university making a list of FOI requesters available to the police. While one would presume that there would be an email with an attached list, I can picture circumstances and reasons why they might have got such a list while they were physically on premises.

I see no harm in asking the question but don’t see much point in pursuing an appeal.

…many of whom were subsequently contacted by UK anti-terrorism police with a strange set of questions…

The fact it was anti-terrorism police, the way they asked for Patrick, not Jeff Id, and the wording of the Guardian front-page article about Paul Dennis all point to weirdnesses somewhere. Neil Wallis doing the PR for UEA at the same time he was polishing the image of Scotland Yard may or may not be connected. But I very much doubt FOI will reveal the most incriminating pieces of the puzzle. For that we would need inquiries with teeth. Or a whistleblower trumping even CG1&2.

Drums in the deep. Remarkably readable and enjoyable work Steve. What sequence or convergence of events will lead to the release of the hidden tranche of emails? This work keeps the drums playing and those behind the fence restless.

I find this story to be amazing. Has nobody in the various investigations ever done the most basic preparation in computer forensics? Where is the system administrator with custody/control over the records in question? Where is the log of file creation and destruction? Where is a printout of the emails in question, which we are assured still exist?

It is as if by waving his hands and uttering words like “email” and “memory stick” and “police,” Sir Muir was able to befog the best intellects arrayed against him.

I concur with an earlier comment that perhaps the best option at this time would be to provie Mr Stringer MP with a copy of this post. I think he would be hard pressed to ignore it and I have an idea that not telling the truth to a select committe may well be a contempt of court. (Parliamnet being the highest Court in the land).

It would certainly be a test of whether Mr Stringer has the fortitude to carry this through or not!

In my experience Mr Stringer, in accordance with parliamentary norms, doesn’t respond to approaches from anybody who isn’t one of his constituents. Any readers/lurkers out there living in Blackley & Broughton (think Manchester)? On the other hand, he might respond to someone as eminent as Steve McIntyre! 🙂

Steve, the thought crosses my mind that people who get federal money to do research should have to live within the same rules that an investment banker lives. (after all we get told 10 times a day how there is not enough regulation in the financial industry)

Here’s what I mean.

In the financial industry all outgoing and incoming email must be archived for a period of 5 years. If (let’s say) a stock broker uses his personal email account to send a business email -no matter how insignificant- he can be fined and lose his license. This archiving is done at the server level and there is no way the user can circumvent it.

Of course I realize this is the UK… But in general, maybe it is time to start lobbying for such reforms both here and abroad.

If these guys knew they were leaving a paper trail, maybe they would be a bit more honest in their endeavors.

The bottom line is, unless you look at the singular values, you can’t say *anything* about your data. You can’t simply look at the principal components (aka singular vectors) without considering the associated singular value magnitudes and draw any reasonable conclusions about whether your data vectors contain a “common signal” or are just random noise. Without the information provided by the singular values, you simply can’t tell (no matter what your principal-components look like).

But that’s exactly what skeptics did when they attacked Mann by claiming that his procedure generates hockey sticks from random noise. They never bothered to compare their “noise hockey stick” singular values with Mann’s “tree-ring” singular values.

Could McIntyre respond, perhaps by saying whether this is a red herring argument about the validity of the temperature hockey stick, or whether caerbannog actually has a valid point?

OzJuggler,
Let’s say you have a model that takes supposed temperature driven input (eg tree ring related measurements) and it produces a hockey stick graph as output. Someone points out that instead of putting in supposed temperature related data if you put in randomly generated data series you STILL almost always get a hockey stick graph as output. Would you question the validity of your model ? I hope so, because it renders your model meaningless – it detects trends where no trends exist. In that context caerbannog’s comments are a joke, he’s either missing the point or just passing on someone elses comments who also miss the point.

The point stands that putting in random data frequently generates hockey sticks. Had that been previously reported ? No. Should it have been caught in peer review ? Yes. What does that say about climate study peer review ? A lot.